Kaieteur News – Former Attorney General (AG), Basil Williams SC is not entitled to any immunity that can prevent him from being sued in his personal capacity. This was essentially the ruling of the Caribbean Court of Justice (CCJ) on Tuesday in the case which Williams challenged the determination of the Guyana Appeal Court.
The Guyana Appeal had thrown out Williams’ application for special leave to appeal a decision that was made essentially in favour of Prithima Kissoon, the former Deputy Solicitor General in the Attorney General’s Chambers who had sued him for defamation in 2017.
Kissoon sued Williams and GNNL for $25M for libel over what she considered false and malicious reports published in the Guyana Chronicle.
In the determination on Tuesday, CCJ President Justice Adrian Saunders said that Mr. Williams may not have expressly couched his arguments in this way but, essentially, what he is claiming is that the Act has the effect of immunising him personally from suit on account of his then status as Attorney General. “That is a fallacy. No one is above the law,” Williams added.
The dispute arose as Basil Williams, while holding the office of Attorney General, believed that Kissoon was sympathetic to the opposition political party and these sympathies extended to deliberately undermining court cases involving the Attorney General’s Chambers and the opposition.
After the appeal, Attorney General v Jagdeo, which was under Ms. Kissoon’s care and control, was dismissed, Williams ordered Ms. Kissoon off all political cases. According to Ms. Kissoon, Williams abused and vilified her in the press. Ultimately, each of them published in the press their side of this sorry episode resulting in the proceedings. Williams was joined to the proceedings in his personal capacity as first named defendant. He objected to this and applied to the High Court of Guyana to have the case struck out against him. On 9th April 2019, the High Court dismissed his application but gave permission to Ms. Kissoon to amend her claim to add the office of the Attorney General as a third defendant, which she did.
On 5th June 2020, the Attorney General applied to the High Court for an order striking out the claim against Williams in his personal capacity. It was contended that the joinder of Williams in his personal capacity breached the State Liability and Proceedings Act Cap 6:05 (‘the Act’). On 26th June 2020, the High Court granted this application and struck, Mr. Williams out from the claim.
Ms. Kissoon appealed this decision to the Full Court of the Supreme Court of Justice, which comprised of three judges, one of which was Kissoon’s brother-in-law. The Full Court of the Supreme Court allowed Kissoon’s appeal and restored Mr. Williams as first defendant in the proceedings. The decision was delivered to the parties via email on 31st March 2021, but Mr. Williams alleges that the decision was emailed to an incorrect email address, therefore he did not learn of the decision until 13th April 2021.
On 28th April 2021, Williams filed an application for leave to appeal the decision of the Full Court to a judge in chambers in the Court of Appeal. This application was filed outside of the fourteen-day time period and so he also filed an application to extend the time to lodge that appeal. This application was struck out by the judge sitting in Chambers on the basis that he did not have any jurisdiction.
Williams then moved a full Panel of the Court of Appeal seeking leave to appeal the decision of the Full Court and an extension of time to lodge that appeal. Williams relied on the fact that the decision was sent to an incorrect email address and that he did not learn of it until 13th April 2021. The full Panel dismissed the appeal and found that the intended appeal had no merit as the provisions of the Act did not prevent a person from suing Williams in his personal capacity.
Williams applied to the CCJ for special leave to appeal the decision of the full Panel of the Court of Appeal. He argued that the composition of the Full Court justified him being granted special leave to appeal the decision of the full Panel of the Court of Appeal which affirmed the Full Court’s decision.
In respect of the constitution of the Full Court, the Court considered the authorities relating to bias and the Bangalore Principles of Judicial Conduct. The Court found that the judge of the Full Court ought to have recused himself given his close relationship with Ms. Kissoon, the appellant before him.
Nevertheless, the Court found that this issue was not determinative of the application for special leave because this Court must still assess whether Williams has otherwise met the test for being granted special leave, that test being whether the intending appellant demonstrates a realistic prospect of the appeal being successful.
The intending appellant may do so if for example there appears to be an egregious error of law or there was a possible miscarriage of justice but in this instance was not proven.
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